HCJ 4481/91
Bargil v. Government of Israel
1
HCJ 4481/91
Gavriel Bargil and others
v.
1. Government of Israel
2. Minister of Building and Housing
3. IDF Commander in Judea and Samaria
4. IDF Commander in Gaza Strip
5. Custodian of Government and Abandoned Property in Judea
and Samaria
6. ‘Supreme Planning Council’
7. ‘Settlement Sub-Committee’
8. Jewish Agency
9. World Zionist Federation
10. Judea, Samaria and Gaza Council
11. Amana – Settlement Movement of Gush Emunim Central
Agricultural Settlement Cooperative Society Ltd
12. Ariel Local Council
13. National Religious Party
The Supreme Court sitting as the High Court of Justice
[25 August 1993]
Before President M. Shamgar and Justices E. Goldberg, T. Or
Petition to the Supreme Court sitting as the High Court of Justice.
Facts: The petition asks the court to find the Government’s policy of allowing Israeli
citizens to settle in the occupied territories of Judea, Samaria and the Gaza Strip to
be illegal.
Held: The court held that the petition was too general to be justiciable.
Petition denied.
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Israeli Supreme Court cases cited:
[1]
HCJ 390/79 Dawikat v. Government of Israel IsrSC 34(1) 1.
[2]
HCJ 663/78 Kiryat Arba Administration v. National Labour Court IsrSC
33(2) 398.
[3]
HCJ 2926/90 (unreported).
[4]
HCJ 852/86 Aloni v. Minister of Justice IsrSC 41(2) 1.
[5]
HCJ 606/78 Awib v. Minister of Defence IsrSC 33(2) 113.
[6]
HCJ 910/86 Ressler v. Minister of Defence [1988] IsrSC 42(2) 441; IsrSJ 10
1.
[7]
HCJ 1635/90 Jerzhevski v. Prime Minister IsrSC 45(1) 749.
American cases cited:
[8]
Warth v. Seldin 95 S. Ct. 2197 (1975).
[9]
Schlesinger v. Reservists to Stop the War 418 U.S. 208 (1974).
[10] Valley Forge College v. Americans United 454 U.S. 464 (1981).
[11] Baker v. Carr 369 U.S. 186, 211-213, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).
[12] Powell v. McCormack, 395 U.S. 486, 519-521, 89 S. Ct. 1944, 23 L. Ed. 2d
491 (1969).
For the petitioners — A. Feldman.
For respondents 1-8 — N. Arad, Director of the High Court of Justice Department at
the State Attorney’s Office.
For respondent 9 – M. Berkovitz.
For respondents 10-11 – D. Rotem.
For respondent 10 – Z. Turlow.
For respondent 12 – Y. Inbar.
For respondent 13 – P. Maoz.
JUDGMENT
President M. Shamgar
1. This petition addresses the settling of citizens who are residents of
Israel in settlements, in the territories held by the Israel Defence Forces (IDF)
under military occupation.
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Bargil v. Government of Israel
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President M. Shamgar
2. (a) The petition relates to the establishment — in the past or the
present — of civilian settlements; in the words of the petition, ‘these actions
are not essential for the defence of the IDF forces in the area or for defending
the State for reasons determined by the authorities directly responsible for the
defence of the State (defence reasons).’ The petition asks why settlement
should not be permitted only to settlers who are prepared and undertake to
leave the area after the defence reasons lapse. The petition further explains,
inter alia, that its intention is to rescind the authority of State authorities to
build, with State budget funds, Jewish Agency funds or Zionist Federation
funds, any housing units, public buildings, infrastructure, electricity, water
connections, roads, paths, etc., other than for defence reasons.
The petition demands that the State budget, when submitted for Knesset
approval, should specify the expenditures in the occupied territories ‘for
settlement and the settling of citizens of the State and its residents there,
separately from and independent of the other expenditures of Government
ministries.’ Directing the petition against the Minister of Building and
Housing, the IDF authorities, the Custodian of Government and abandoned
property and planning and building authorities, is designed to ask us to
determine restrictions for the actions of these authorities in matters relating to
settlement.
(b) The petition wants us to consider the legality of the actions of the
Government of Israel and other authorities with regard to settlement which is
being carried out not for defence reasons but for the purpose of permanent
settlement. It is argued that the legality is prejudiced because these actions
run counter to the State’s obligation under public international law not to
exercise its sovereignty in the occupied territories, to maintain the status quo
and to act in accordance with the customary and written rules of public
international law.
(c) The petition seeks to base its arguments on three areas of law:
customary public international law, administrative law and civil law.
The petitioners refer us to public international law, as set out in the
Geneva Convention concerning the Protection of Civilian Persons in Time of
War, 1949 (hereafter — ‘the Geneva Convention’), which prohibits the
transfer of the State’s population to the occupied territories. The issue of
settlements is admittedly an ideological one, and the petitioners point out that
they do not deny the right to adopt any ideological position, provided that it
does not conflict with existing law. Exercising full sovereignty in the
occupied territories is contrary to law. The Government has only the authority
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President M. Shamgar
to exercise its powers under art. 43 of the Annex to the Hague Convention
concerning the Laws and Customs of War on Land, 1907 (hereafter — ‘the
Hague Convention’). This article embodies the axiom that every action of a
military administration is governed by the principle of transience. Emphasis
is placed on restoring law and order and life as it was on the eve of the
occupation, and no new public order may be established in any sphere. Any
permanent settlement is contrary to the principle of transience, since it leads
to a substantive change of a permanent nature. Moreover, the settlements
change the law in the occupied territories: they lead to Israeli legislation that
relates especially to the Jewish residents in the territories, their being subject
to the jurisdiction of the courts in Israel etc., and to defence legislation that
creates separate and unique legal arrangements for this population.
Furthermore, since the Geneva Convention allegedly prohibits even a
voluntary and uncoerced population transfer of the State’s population into an
occupied territory, the respondents’ actions are contrary to the rules of the
Geneva Convention. Every site on which a settlement is established is de
facto annexed to the territory of the State of Israel. The legal and political
climate prevailing in it is precisely identical to that of the State of Israel. Any
actions of the authorities that do not apply and implement the legislation in
force in the area are unreasonable, to the extent that they breach the
international undertakings of the State. They are tainted with an improper
purpose, and therefore, by virtue of Israeli administrative law, they should be
voided, and in order to void them there is no need for the legal determination
that the Geneva Convention is part of customary international law.
(d) The authorities that establish settlements are an integral part of the
Israeli Government and bureaucracy, which considers questions of
settlement, land, people’s willingness to settle, and not considerations of a
military Government in occupied territories.
The facts created in the territories as a result of the settlements are
permanent and independent of any political arrangement that may occur after
the military Government ends. In view of the housing crisis that exists in the
State of Israel, the range of economic incentives offered to persons settling in
the occupied territories amounts almost to a ‘forced transfer of the citizens of
the State to the occupied territories’. The petitioners argue that the
expenditure of State funds to finance these benefits is expenditure for
purposes prohibited under the customary rules of international law. The act of
enticing people to live in the occupied territories and exploiting their
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President M. Shamgar
economic distress for this purpose are also prohibited, and the impropriety
lies both in the motive and in the outcome.
(e) Finally, these acts are not merely contrary to customary public
international law norms, nor are they merely improper from the viewpoint of
administrative law, but they are also, as stated, allegedly invalid for a third
reason, namely under the constitutional law of the State of Israel, since the
settlements violate the fundamental principles of the State of Israel as a
democratic and egalitarian State. How so? No-one disputes that Israel’s
administration of the occupied territories is undemocratic, in the sense that
the military commanders are not elected by the local population and are not
answerable to it for their actions. Notwithstanding, the court has held on
several occasions that to the extent that defence requirements and other
obligations imposed on the occupying State allow, human rights of the local
residents may not be violated unnecessarily. Creating a large community of
Israelis who are citizens of the State and who live in the occupied territories
and enjoy material assets, political rights, economic rights, legal rights and
basic rights that are far superior to those given to the Arab residents of the
occupied territories creates improper discrimination, which humiliates the
residents of the occupied territories, and creates a social and political system
contrary to the values of the State of Israel as a democratic and liberal State.
In the petitioners’ opinion, the authority given to the Jewish Agency and
the Zionist Federation is also improper, for how can the fifth respondent
justify, under the customary rules of international law, the conferral of
powers and authority on a body that is extrinsic to the territories and that
operates within a jurisdiction, discretion and ideology that are blatantly
Jewish and Zionist, and that certainly does not include among its goals the
welfare of the local Arab population.
3. In my opinion, this petition should be denied, for it is defective in that
it relates to questions of policy within the jurisdiction of other branches of a
democratic Government, and it raises an issue whose political elements are
dominant and clearly overshadow all its legal fragments. The overriding
nature of the issue raised in the petition is blatantly political. The
unsuitability of the questions raised in the petition for a judicial
determination by the High Court of Justice derives in the present case from a
combination of three aspects that make the issue unjusticiable: intervention in
questions of policy that are in the jurisdiction of another branch of
Government, the absence of a concrete dispute and the predominantly
political nature of the issue.
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President M. Shamgar
4. (a) The petition before us seeks relief which is partly injunctive and
partly declarative. The petition is characterised by its generality, namely by
the absence of any attempt to establish a concrete set of facts as a basis for
the argument, which is customary in this court and of course also in every
other judicial forum, or perhaps even by a deliberate failure to make such an
attempt. The clear purpose of the petition is to attack a general Government
policy that prevailed at the time of submitting and hearing the petition,
without reference to concrete acts or inaction.
The petition amounts to a general objection to Government policy. It is
more general, by comparison, even than the case heard in the United States
Supreme Court, Warth v. Seldin (1975) [8] (a petition claiming that the
planning and building legislation in a certain city prevented persons with
medium or low incomes from living in that city). In that case, the petition
was denied, inter alia, because it violated the rule that the judiciary, by virtue
of its judicial self-governance, does not consider abstract matters of sweeping
public significance that are merely general objections on matters of policy,
best considered by the legislature or the executive.
As stated in that case, the United States Supreme Court rejected the
approach where:
‘The courts would be called to decide abstract questions of wide
public significance, even though other Governmental institutions
may be more competent to address the questions…’
See also, for instance, Schlesinger v. Reservists to Stop the War (1974) [9],
at 222. The court does not deal with abstract problems, unless they are linked
to a dispute with concrete implications; it will certainly not do so if the case
is one of abstract problems of a predominantly political nature.
(b) In Professor A. Barak’s book, Judicial Discretion (Papyrus, 1987) at
242-245, the author points out that:
‘The court is an institution for deciding disputes. This is its main
function. Exercising judicial discretion that aims to choose
between different possibilities with regard to a legal norm, its
existence — the scope of its application — is only a means for
deciding a dispute. It is not the purpose of the proceeding but
merely a by-product thereof. It is not an act that stands on its
own, but it is incidental to deciding the dispute…
…
HCJ 4481/91
Bargil v. Government of Israel
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President M. Shamgar
…It is true that judicial legislation is becoming a central
function of the Supreme Court. Nonetheless, even this central
function is incidental to deciding disputes. Even the Supreme
Court is a court that decides disputes between the parties. In this
way it is different from the legislator, for whom the creation of
law is a central function... the judge always engages in the
creation of law incidentally to deciding a dispute.’
See also ibid., at p. 245, note 20.
For this reason the court could consider the question whether a right of
appeal should be granted to someone tried in a military court in Judea and
Samaria, when a petition was submitted to it by someone who was tried in
the trial court, without having a right of appeal to a court of appeal; however,
following our approach, the court would not have considered the matter on
the basis of an abstract petition, unrelated to the concrete case of a specific
person.
In order to remove any doubt, I would add that it is not the fact that the
matter regards a dispute about land in the occupied territories that stops us
from intervening; this court has in the past dealt more than once with
petitions about a concrete dispute with regard to Jewish settlements in Judea,
Samaria or the Gaza Strip (see, for example, HCJ 390/79 Dawikat v.
Government of Israel [1]; HCJ 663/78 Kiryat Arba Administration v.
National Labour Court [2]). The courts, however, are only prepared to hear
objective, defined and specific quarrels and disputes, not abstract political
arguments. For this reason, the High Court of Justice has, for instance,
refrained from considering the proper or desirable water policy (HCJ 2926/90
[3]). In the aforesaid case, HCJ 2926/90 [3], we further pointed out that it is
incumbent upon every authority, including the water authorities, to comply
meticulously with the law and to conduct themselves in accordance with the
principles of proper administration. It is not inconceivable that the court will
consider a concrete issue concerning non-compliance with the law in so far as
it relates to issues of water administration, but it is not reasonable for the
court to turn itself into a body that outlines the general water policy. There
are situations in which, during a hearing on a concrete dispute, the court may
even comment on the correct manner in which any particular authority should
act, but when it has before it a general and sweeping issue, no matter how
important it may be, and this merely raises the question the desired general
policy, it does not regard the matter as being within its jurisdiction. In other
words, the court will not deal with foreign, defence or social policy, when the
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claim or petition are unrelated to a defined dispute, merely because the
petitioner or plaintiff attempt to cloak their claim or petition in legal
language.
(c) Moreover, there is no basis for raising an objection because of the
absence of locus standi: in cases where a claim is raised about a material
violation of the rule of law, the court had generally been inclined to hear a
petition, even when petitioners have not shown a direct injury to themselves;
however in each of the aforesaid cases there was a concrete issue at the centre
of the litigation, whether it might be an issue of settlements in a certain place,
a concrete act of pardon, or a specific question of extradition. On the other
hand, we have not seen fit, as stated above, to consider abstract and general
political problems, a matter which, as stated, is within the jurisdiction of a
different authority. It is simple and clear that the separation of powers was
not intended merely to prevent intervention in matters that are in the
jurisdiction of the judiciary, but to prevent intervention into the defined
jurisdiction of each of the three authorities. This is the essence of the balance
between them. In the words of the Supreme Court of the United States in
Valley Forge College v. Americans United (1981) [10], the court must not
deal with:
‘generalized grievances, pervasively shared and
appropriately addressed to the representative branches.’
most
As stated in Valley Forge College v. Americans United [10], the courts
must not become a judicial version of a debating club (as stated there:
‘judicial versions of college debating forums’) or a ‘vehicle for the
vindication of the value interests of concerned bystanders.’
Justice Brennan of the United States Supreme Court, one of the adherents
of extending the right of standing, and one of the main proponents of the
liberal approach, said about this:
‘Properly understood, the political-question doctrine restrains
courts from reviewing an exercise of foreign policy judgment by
the coordinate political branch to which authority to make that
judgment has been “constitutional(ly) commit(ted).” Baker v.
Carr [11]. But the doctrine does not pertain when a court is
faced with the antecedent question whether a particular branch
has been constitutionally designated as the repository of political
decision-making power. Cf. Powell v. McCormack, 395 U.S.
486, 519-521, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969).’
HCJ 4481/91
Bargil v. Government of Israel
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President M. Shamgar
Thus, on the one hand, the court must refrain from considering foreign
policy matters that are in the sphere of the governing authority charged with
them and which are being dealt with by it. On the other hand, it would be
right and proper for the court to relate, where necessary, the preliminary
question, namely, which is the branch of Government that has been given the
authority to make a decision under constitutional law.
5. This alone was enough to decide the petition. However, if it is argued
that the issue is a mixed legal-political one, I would refer to what was
explained, inter alia, in HCJ 852/86 Aloni v. Minister of Justice [4], at pp. 129. As we said there, attempts have been made to bring predominantly
political disputes into the jurisdiction of the court. In that case I pointed out
that I personally do not believe that it is, in practice, possible to create a
hermetic seal or filter that are capable of preventing disputes of a political
nature from penetrating into litigation before the High Court of Justice. The
standard applied by the court is a legal one, but public law issues also include
political aspects, within the different meanings of that term. The question
which must be asked in such a case is, generally, what is the predominant
nature of the dispute. As explained, the standard applied by the court is a
legal one, and this is the basis for deciding whether an issue should be
considered by the court, that is, whether an issue is predominantly political or
predominantly legal.
In the case before us, it is absolutely clear that the predominant nature of
the issue is political, and it has continued to be so from its inception until the
present.
I would therefore deny the petition.
Justice E. Goldberg
Already in HCJ 606/78 Awib v. Minister of Defence [5], at pp. 128-9,
Vice-President (as he was then) Landau said about the issue of settlements:
‘I have very gladly reached the conclusion that this court must
refrain from considering this problem of civilian settlement in an
area occupied from the viewpoint of international law, in the
knowledge that this problem is a matter of controversy between
the Government of Israel and other Governments, and that it is
likely to be included in fateful international negotiations facing
the Government of Israel. Every expression of opinion by this
court on such a sensitive matter, which can only be made obiter,
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Justice E. Goldberg
will have no effect either way, and it is best that matters that
naturally belong in the sphere of international policy are
considered only in that sphere. In other words, although I agree
that the petitioners’ complaint is generally justiciable, since it
involves property rights of the individual, this special aspect of
the matter should be deemed non-justiciable, when brought by
an individual to this Court.’
When HCJ 390/79 Dawikat v. Government of Israel [1] came before the
court, Vice-President (as he was then) Landau said, at p. 4:
‘In the meantime, the intensity of the dispute in the international
arena has not waned; instead the debate has intensified even
among the Israeli public internally... this is therefore a serious
problem that currently troubles the public... this time, we have
proper sources for our decision, and we do not need, and it is
even forbidden for us when sitting in judgment, to introduce our
personal views on the matter as citizens of the State. There are
still strong reasons to fear that the court will be seen to have
abandoned its proper place and descended into the arena of
public debate, and that its decision will be received by part of
the public with applause and by the other part with total and
agitated repudiation. In this sense I see myself here, as someone
whose duty it is to render judgment in accordance with the law
in respect of every matter lawfully brought before the court, as a
captive of the law, with the prior, clear knowledge that the
general public will not pay attention to the legal reasoning but
only to the ultimate conclusion, and the court as an institution
may lose its proper standing as being above the disagreements
that divide the public. But what else can we do; this is our job
and our duty as judges.’
The petition before us does not deal with any violation of Arab residents’
property rights (as in Awib v. Minister of Defence [5] and in Dawikat v.
Government of Israel [1]), but with the question of the legality of establishing
civilian settlements in the occupied territories, for reasons other than security
reasons. We are not asked to make passing statements, but to provide an
answer that seizes the legal problem ‘by the horns’. Are the said settlements
lawful or unlawful (as the petitioners argue), with all the practical, political
and international ramifications arising from the answer that will be given.
HCJ 4481/91
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Justice E. Goldberg
Should we refrain from considering this matter? That is the question
facing the court in full force. Note that it is not the petitioners’ locus standi
that is at issue, for they do have this right. In my opinion, the crux of the
matter is whether this dispute should properly be determined by the court,
notwithstanding our ability to rule on it as a matter of law. In other words,
does this case fall into the category of the few cases where this Court will
deny a petition for lack of institutional justicity (in the terminology of Justice
Barak in HCJ 910/86 Ressler v. Minister of Defence [6], at p. 474 {72}, and
HCJ 1635/90 Jerzhevski v. Prime Minister [7], at p. 856).
I believe that we must answer this question in the affirmative. This is not
because we lack the legal tools to give judgment, but because a judicial
determination, which does not concern individual rights, should defer to a
political process of great importance and great significance. Such is the issue
before us: it stands at the centre of the peace process; it is of unrivalled
importance; and any determination by the court is likely to be interpreted as a
direct intervention therein. The special and exceptional circumstances
referred to, which are unique, are what put this case into the category of those
special cases, where the fear of impairing the public’s confidence in the
judiciary exceeds ‘the fear of impairing the public’s confidence in the law...’
(Ressler v. Minister of Defence [6], at p. 496 {106}).
The petitioners have the right to place a ‘legal mine’ on the court’s
threshold, but the court should not step on a mine that will shake its
foundations, which are the public’s confidence in it.
Justice T. Or
The petition refers to issues of a general nature, and is, in fact, a request to
the court to give its opinion to outline in general what is permitted and
prohibited with regards to settlements in Judea, Samaria and the Gaza area.
This is not a concrete petition relating to a specific settlement, with all the
special factual details and conditions relating to such a settlement, or to an
infringement of any property rights of one of the residents of the said areas.
A petition formulated in such a way cannot be heard. Therefore I agree
with the conclusions of my esteemed colleague, the President, that the
petition should be denied.
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Justice T. Or
Petition denied.
25 August 1993.
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